WHAT IS A SOUND RECORDING?

The copyright law of the United States (title 17, U.S.C.) provides for copyright protection in sound recordings. Sound recordings are defined in the law as "works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work." Common examples include recordings of music, drama, or lectures.

Copyright in a sound recording protects the particular series of sounds "fixed" (embodied) in the recording against unauthorized reproduction and revision and against the unauthorized distribution of phonorecords containing those sounds.

Generally, copyright protection extends to two elements in a sound recording: (1) the contribution of the performer(s) whose performance is captured, and (2) the contribution of the person or persons responsible for capturing and processing the sounds to make the final recording.

A sound recording is not the same as a phonorecord. A phonorecord is simply the physical object in which works of authorship are embodied. Throughout this circular the word "phonorecord" includes cassette tapes, CD's, LP's, 45 r.p.m. disks, as well as other formats.

NOTE: SOUND RECORDINGS FIXED BEFORE FEBRUARY 15, 1972

Sound recordings fixed before February 15, 1972, were generally protected by common law or in some cases by statutes enacted in certain states, but were not protected by federal copyright law. In 1972 Congress amended the copyright law to provide copyright protection for sound recordings fixed and first published with the statutory copyright notice on or after February 15, 1972. The present copyright law, effective on January 1, 1978, provides federal copyright protection for unpublished and published sound recordings fixed on or after February 15, 1972. Any rights or remedies under state law for sound recordings fixed before February 15, 1972, are not annulled or limited by the Copyright Act of 1976 until February 15, 2047.

GENERAL INFORMATION ABOUT COPYRIGHT

Copyright Protection is Automatic

Under the present copyright law, which became effective January 1, 1978, a work is automatically protected by copyright when it is created; a work is created when it is "fixed" in a copy or phonorecord for the first time. Neither registration in the Copyright Office nor publication is required to secure copyright under the present law.

In two specific situations, copyright registration is necessary to maintain copyright protection.

Works in which statutory copyright was secured prior to January 1, 1978, must be registered and renewed during the first 28-year term of copyright to maintain protection.

Under sections 405 and 406 of the current Copyright Act, copyright registration with respect to copies and phonorecords publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988 may be required to preserve a copyright that would otherwise be invalidated because the copyright notice was omitted from the published copies or phonorecords, or the name or year date was omitted, or certain errors were made in the year date.

Advantages to Copyright Registration

There are, however, certain advantages to registration, including the establishment of a public record of the copyright claim. Copyright registration must generally be made before an infringement suit may be brought. Timely registration may also provide a broader range of remedies in an infringement suit.

Publication

The present Copyright Act defines publication as follows: "Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication."

"To the public" generally means to persons under no explicit or implicit restrictions with respect to disclosure. The following acts do not constitute publication: performance of the work, preparation of copies or phonorecords, or sending the work to the Copyright Office.

Publication is important for several reasons. When a work is published a notice of copyright may be placed on all publicly distributed phonorecords of the sound recording. Adding the notice has certain advantages (see "Notice of Copyright for Sound Recordings"). The deposit requirements for registration of published works differ from those for unpublished works (see "Deposit Requirement"). In addition, a published work is subject to mandatory deposit (see "Mandatory Deposit").

REGISTRATION PROCEDURES

If you choose to register your work, send the following three elements in the same envelope or package to:

Register of Copyrights
Copyright Office
Library of Congress
Washington, D.C. 20559

1. An application on the appropriate form;

2. A nonreturnable deposit of the work for which registration is sought (see "Deposit Requirement"); and

3. A nonrefundable filing fee of $20 in the form of a check or money order (payable to the Register of Copyrights) for each application.

CHOOSING THE APPROPRIATE FORM

Copyright registration for a sound recording alone is not the same as, nor a substitute for, registration for the musical, dramatic, or literary work recorded. The underlying work may be registered in its own right apart from any recording of the performance, or in certain cases, registered together with the sound recording.

When to Use Form SR

Use Form SR for registration of published or unpublished sound recordings, that is, when you are seeking to register the particular sounds or recorded performance.

Form SR must also be used if you wish to make one registration for both the sound recording and the underlying work (the musical composition, dramatic or literary work). You may make a single registration only if the copyright claimant is the same for both the sound recording and the underlying work. In this case, the authorship statement in Space 2 should specify that the claim covers both works.

Form SR is also the appropriate form for registration of a multimedia kit that combines two or more kinds of authorship including a sound recording (such as a kit containing a book and an audiocassette).

When to Use Form PA

For registration purposes, musical compositions and other works intended to be performed are classified as works of the performing arts. For example if you wish to register only the musical composition (not the particular sounds of recorded performance) you should use Form PA, even though your deposit may be a phonorecord.

Whether a musical composition is fixed (embodied) in a notated copy such as a lead sheet or sheet music, OR in a phonorecord such as a tape or disk does not affect its classification as a work of the performing arts.

NOTE: SOUNDS ACCOMPANYING MOTION PICTURES AND OTHER AUDIOVISUAL WORKS

Sounds accompanying a motion picture or other audiovisual work should not be registered on Form SR; the copyright law does not define these sounds as "sound recordings," but as an integral part of the motion picture or audiovisual work in which they are incorporated. These works are classified as works of the performing arts and should be registered on Form PA. Request Circular 55, "Copyright Registration for Multimedia Works" for more information.

Examples of the Proper Use of Forms PA and SR

Jane Smith composes words and music, which she entitles "Blowing in the Breeze." Even though she records it, she is not interested in registering the particular recording, but only in registering the composition itself. If she decides to submit "Blowing in the Breeze" for copyright registration, she should use Form PA. Emily Tree decides to perform and record Jane Smith's "Blowing in the Breeze," after complying with permissions and license procedures. If Emily decides to submit her recording for copyright registration, she should use Form SR.

The same principles apply to literary and dramatic works. A recorded performance of an actor speaking lines from "Hamlet" could be registered on Form SR as a sound recording; the claimant in the sound recording of course has no copyright in the underlying work, "Hamlet."

HOW TO COMPLETE FORM SR

Instructions for completing each space of the application accompany the form. Nevertheless, registration is often delayed because of mistakes or omissions in filling out the form. The following points should be helpful.

Space 1:

Give the title of the work exactly as it appears on the phonorecord.

Two or more unpublished works registered as a collection must be given a single collection title. The individual titles may be given in Space 1 following the collection title, or on a Continuation Sheet. For more information on unpublished collections, see section on "unpublished collections," below.

Space 2:

Name of Author

The author of a sound recording is the performer(s) or record producer or both.

If the work is "made for hire," as defined below, the employer is considered to be the author, and should be named in Space 2. A "work made for hire" is:

(1) a work prepared by an employee within the scope of his or her employment,

(2) or a work of a type specified in the law which has been specially ordered or commissioned, where there is an express written agreement signed by both parties that the work shall be considered a "work made for hire."

Generally speaking, for a new sound recording to be a work made for hire, it must be made by an employee within his or her scope of employment. For more information on works made for hire, request Circular 9.

NOTE: A sound recording is not one of the types of works affected by clause (2) of the definition of "work made for hire" unless it constitutes a supplementary work, collective work, or compilation.

Check "yes" to the "work made for hire" question only if the conditions for "work made for hire" have been met, and name the employer as the author in Space 2.

Nature of Authorship:

Do not leave this space blank; it must be completed. If the copyright claim is in the sound recording only, describe the authorship in terms of "performance" or "sound recording," or both.

When the same person or organization owns all rights in both the underlying work and the sound recording, and wishes to register both, then be sure to describe both kinds of authorship in this space (for example, the musical composition as "music," or "words and music," and the sound recording as "performance" or "sound recording," or both).

Space 2 of Form SR must specifically refer to the sound recording authorship in order for this authorship to be included in the registration.

Space 3:

Creation: The year of creation of a sound recording is the year in which the sounds are fixed in a phonorecord for the first time. This year date must always be given.

Publication: Publication, as defined by the copyright law, is the "distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication."

The following acts do not of themselves constitute publication: performance of the work, preparation of phonorecords, or sending the work to the Copyright Office.

If publication has not taken place, leave this part of Space 3 blank. If the work for which registration is sought has been published, give the month, day, and year when the phonorecords were first published and the nation of first publication.

Space 4:

The name and address of the copyright claimant(s) must be given. The copyright claimant is either the author or a person or organization who has obtained from the author all of the rights in the United States copyright. When the claimant named is not the author, a brief transfer statement is required at Space 4 to show how the claimant acquired the copyright.

Ownership or partial ownership of the rights in a work must generally be transferred by a written instrument or by operation of law. Thus, examples of generally acceptable transfer statements include: "by written agreement;" "assignment;" "written contract;" "by will." Do not attach copies of documents to the application. If you wish information on how to record transfers or other documents pertaining to copyright, write to the Copyright Office for Circular 12, "Recordation of Transfers and Other Documents."

When the names given at Space 2 and Space 4 are not the same, but identify the same entity, the relationship between the names must be explained. For example, you might state: "Doe Recording Company, solely owned by John Doe," or "John Doe, doing business as Doe Recording Company."

Space 5:

If no previous registration has been made, answer the first question "no" and leave the rest of Space 5 blank. The first question should be answered "yes" only if a previous registration for this work or another version of it was completed and a certificate of copyright registration issued. If this is the case, check the appropriate box to show why another registration is sought, and give the requested information about the previous registration.

Space 6:

Note: Most persons filing claims to copyright in sound recordings will not need to complete Space 6 because most sound recordings do not contain preexisting sounds.

Derivative Works

A derivative sound recording is one which incorporates some preexisting sounds_sounds which were previously registered, previously published, or which were fixed before February 15, 1972. Registration for a derivative work must be based on the new authorship that has been added. When a work contains preexisting sounds, Space 6 of the application must contain brief, general descriptions of both the preexisting material (Space 6a) and the added material (Space 6b).

For example, Fine Sounds Corporation issues a long-playing album containing 10 selections, 2 of which were published last month on sides A and B of a 45 rpm single. On the application for registration of the sounds on the album, the following statement might be given in Space 6a: "sounds for side A, band 1 and side A, band 3 previously published." The new material might be described in Space 6b as "sounds for 8 bands" or "sounds for 8 selections."

In cases where the preexisting sounds themselves have been altered or changed in character, Space 6b should be used to describe in more precise terms the engineering techniques involved. For example, Educational Records, Inc., remixes the original tracks of a previously released recording of a Beethoven symphony. Space 6a should identify the preexisting material as "sounds previously published." Space 6b might indicate "remixed from multitrack sound sources" or "remixed sounds." This new material must result from creative new authorship rather than mere mechanical processes; if only a few slight variations or purely mechanical changes (such as declicking or remastering) have been made, registration is not possible.

Compilation of Sound Recordings

Compilation: A "compilation" is a work formed by the collecting and assembling of preexisting materials that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.

When an author contributes a certain minimum amount of authorship in the selection and ordering of preexisting sound recordings, the author produces a copyrightable compilation. The copyright in the compilation of recordings is separate and distinct from copyright (if any) in the recordings themselves. It extends only to the selection and ordering of the recordings on the disk or tape. Fill out part b of Space 6. Describe the new material as "compilation of sound recordings." In Space 2, use the same statement to describe the nature of the author's contribution. For example: Oldies Record Company has chosen the greatest hits of the big bands recorded in the thirties and forties, and published them in a boxed set of disks. The authorship involved in choosing the bands, selecting their "greatest hits," selecting the particular recordings, and the ordering of them on the disks is registrable as a compilation, even though the recordings themselves are not protected by the federal copyright law because they were fixed prior to February 15, 1972.

Space 8:

The application must bear an original signature and be dated. Stamped signatures are not acceptable. For a published work, the application must be certified on or after the date of publication.

REGISTRATION OF UNPUBLISHED COLLECTIONS

A single registration for two or more unpublished works can be made with one application and fee only if all of the following conditions have been met:

1. The selections must be assembled in an orderly form.

2. The combined selections must bear a single title identifying the collection as a whole (give that title in Space 1).

3. All of the selections must be by the same author; or, if they are by different authors, at least one author must have
contributed to each selection.

4. The copyright claimant or claimants must be the same for each selection. (When multiple claimants are listed in Space 4, each claimant listed must own an interest in every selection and in the collection as a whole.)

When the claim is in both the musical compositions and the sound recordings, these four conditions must be met separately for the collection of musical compositions and the collection of sound recordings. Each claimant named in Space 4 of the application must own the rights in every musical composition and in every sound recording in order to register them together as a collection. If this is not the case, the works should either be registered individually, or grouped into two or more collections, each of which meets the collection requirements.

Although registration for an unpublished collection covers all the selections, only the collection title will appear in the catalog of copyright registrations; the individual titles are not indexed.

DEPOSIT REQUIREMENT

To register a copyright claim in a sound recording, the deposit requirement is either one or two phonorecords, depending on whether the work is unpublished or published.

-- If unpublished, deposit one phonorecord.

-- If first published in the United States on or after January 1, 1978, deposit two complete phonorecords of the best edition together with any printed or other visually perceptible material, such as record sleeves and jackets, published with the phonorecords.

-- If first published in the United States before January 1, 1978, deposit two complete phonorecords of the work as first published.

-- If first published outside the United States, deposit one complete phonorecord of the work as first published, regardless of the date of first publication.

If the sound recording has been published in only one edition, send two phonorecords of that edition.

If it has been published in more than one edition, the "best edition" in descending order of suitability is 1) a compact digital disk rather than a vinyl disk, 2) a vinyl disk rather than a tape, 3) an open-reel tape rather than a cartridge, and 4) a cartridge rather than a cassette.

NOTICE OF COPYRIGHT FOR SOUND RECORDINGS

When a sound recording is published under the permission of the copyright owner on or after March 1, 1989, use of the copyright notice is optional, though highly recommended. Before March 1, 1989, the use of the notice was mandatory on all published works, and any work first published before that date must bear a notice or risk loss of copyright protection.

The Copyright Office takes no position and offers no advice regarding the use of notice on reprints distributed March 1, 1989, or later, of works first published with notice before March 1, 1989.

Use of the notice is recommended because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if the work carries a proper notice, the court will not allow a defendant to claim "innocent infringement" -- that is, that he or she did not realize that the work is protected. (A successful innocent infringement claim may result in a reduction in damages that the copyright owner would otherwise receive.)

If the work was published before March 1, 1989, or if you wish to add a notice to a work published on that date or later, the notice should be placed on all publicly distributed phonorecords, even if the phonorecords were published outside the United States.

The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office.

Form of Notice for Phonorecords of Sound Recordings

The copyright notice for phonorecords of sound recordings should contain the following three elements:

-- The sound recording copyright symbol (the letter P in a circle); and

-- The year of first publication of the sound recording; and

-- The name of the owner of copyright in the sound recording, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner. If the producer of the sound recording is named on the phonorecord labels or containers, and if no other name appears in conjunction with the notice, the producer's name shall be considered a part of the notice.

NOTE: Because of problems that might result in some cases from the use of variant forms of the notice, any form of the notice other than the one given here should not be used without first seeking legal advice.

Position of Notice

The notice should be affixed to phonorecords of the work in such a manner and location as to "give reasonable notice of the claim of copyright." The notice should appear on the surface of the phonorecord or on the phonorecord label or container, provided the manner of placement and location gives reasonable notice of the claim. The three elements of the notice should ordinarily appear together on the phonorecord.

MANDATORY DEPOSIT FOR WORKS PUBLISHED IN THE UNITED STATES WITH NOTICE OF COPYRIGHT

Although a copyright registration is not required, the Copyright Act establishes a mandatory deposit requirement for works published in the United States. In general, the owner of copyright, or the owner of the exclusive right of publication in the work has a legal obligation to deposit in the Copyright Office, within 3 months of publication in the United States two complete phonorecords of the best edition. It is the responsibility of the owner of copyright, or the owner of the right of first publication in the work to fulfill this mandatory deposit requirement.

A "complete phonorecord," in the case of sound recordings, includes a phonorecord, together with any printed or other visually perceptible material published with such phonorecord (such as textual or pictorial matter appearing on record sleeves or album covers, or embodied in leaflets included in a sleeve, album, or other container). Failure to make the deposit can result in fines and other penalties, but does not affect copyright protection.

For further information about mandatory deposit, please write to the Copyright Office for Circular 7d, "Mandatory Deposit of Copies of Phonorecords for the Library of Congress."

Use of Mandatory Deposit To Satisfy Registration Requirements

The copyright law establishes the conditions under which the same deposit of phonorecords will satisfy the deposit requirements for the Library of Congress and for copyright registration. The phonorecords should be sent to the Copyright Office accompanied by an application for copyright registration and a $20 fee all together in the same mailing package.

The mandatory deposit requirement also applies to sound recordings first published abroad which are later published in this country through the distribution of phonorecords that either are imported or are part of an American edition. The phonorecord submitted for registration of a "foreign work," that is, a sound recording first published abroad that is later distributed in the United States without a change in copyrightable content, will also meet the mandatory deposit requirement if (a) registration for the sound recording is made before it is distributed in the United States, or (b) registration for the sound recording is made after the work is distributed in the United States but before a demand for deposit is made by this Office. If registration is not made, or if it is made after a demand, two phonorecords must be deposited.

WHEN ARE COPYRIGHT REGISTRATIONS EFFECTIVE?

Please note that a copyright registration is effective on the date of receipt in the Copyright Office of all the required elements (that is, application, phonorecord, and fee) in acceptable form, regardless of the length of time it takes to process the application and mail the certificate of registration.

The Copyright Office does not send acknowledgements that applications have been received (the Office annually receives over 600,000 applications); if you want to know when the Copyright Office receives your material, you should send it by registered or certified mail and request a return receipt from the Postal Service.

Although you will not receive an acknowledgement that your application has been received, you can expect within 16 weeks:

-- A certificate of registration to indicate the work has been registered, or

-- A letter or telephone call from a copyright examiner asking for further information, or explaining why registration has been refused.

FOR MORE INFORMATION

For more information, request Circular 1, "Copyright Basics," Circular 50, "Copyright Registration for Musical Compositions," and Circular 56a, "Copyright Registration of Musical Compositions and Sound Recordings," by writing to:

Publications Section, LM-455
Copyright Office
Library of Congress
Washington, D.C. 20559

You may request registration application forms and circulars from the above address or by calling the Forms Hotline, (202) 707-9100.

***Last update 6/14/93 (raa)***

Comments: RobtKohn@aol.com
Copyright © 1995, 1996 Bob Kohn (except portions authored by U.S. government)
A Theoria Publication
(1/15/96)